Wolff v. NH Department of Corrections

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Charles Jay Wolff
v. 	Case No. 19-cv-146-JL
New Hampshire Department of
Corrections et al.1
REPORT AND RECOMMENDATION
Before the court is Plaintiff Charles Jay Wolff’s complaint
(Doc. No. 1) and addenda to the complaint (Doc. Nos. 5, 6, 11,
1Plaintiff names the following defendants to this action:
the New Hampshire Department of Corrections (“DOC”); the New
Hampshire State Prison (“NHSP”); and the following current and
former DOC and/or NHSP employees: Jeff Perkins, former Food
Services Director (“FSD”); Todd Shaheen, former FSD; Rebecca
Harding, former/retired NHSP (non-certified) librarian;
Corrections Officer (“CO”) Subrina Berinski; Paula Mattis,
Director, DOC Medical and Forensic Services; Cpl. Susca, whose
first name is unknown (“FNU”); former Sgt. Lusan Susca; Ryan
Landry, RNC; Marie McCanna, former/retired RNC; Dr. Robert
McCloud, former DOC Medical Director; Deborah Sawyer, RN; Jane
Dillion, RN; Steve, whose last name is unknown (“LNU”), physical
therapist; Laura Hardwick, Principal, Education Department; Lucy
Biliodu, former/retired Unit Manager; Dr. David Freeman; Joyce
Leaka, former Medical Records Clerk; Dr. Jeffrey C. Fetter;
Robert McGrath, former/retired Unit Manager; Alexa LNU, Clerk
Supervisor, Dental Department; Robert Heath, FSD; Helen Hanks;
Maj. Jon Fouts; Sgt. Cheryl St. Peter (now Surette); Lt. James
Joseph Brown; Bernadette Campbell, physical therapist; Tim
Popovich, RD; Christopher H. Kench; Dr. Celia Ann Englander;
Robert Kroll; Sgt. David Honeman; Dr. Edward Dransite, former
dentist; Mrs. Ann Davis; Capt. Gary Burke; Cpl. FNU Raposa,
Mailroom; CO Tammy McCloud, Mailroom; CO Victoria Lamontagne;
Dr. David Potensa; FNU McDonald, Canteen; Paul LaFlame, former
civilian line server; and Elizabeth Kisis.
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15), filed pursuant to 42 U.S.C. § 1983. 	In this action, Wolff,
a New Hampshire Department of Corrections (“DOC”) inmate housed
at the New Hampshire State Prison (“NHSP”), asserts that the
DOC, the NHSP, and a number of DOC/NHSP employees, have violated
his rights under federal law. 	The matter is before the court
for preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).2
Also pending in this case are the following motions Wolff
has filed, which are addressed in this Report and Recommendation
(“R&R”):
• 	Motion for a search/seizure warrant (Doc. No. 10);
• 	Motion for a no-contact order and for court-appointed
counsel (Doc. No. 12); and
• 	Motion for an emergency hearing (Doc. No. 13).
Background and Claims
Wolff is a seventy-three year old NHSP inmate who states
that he is a permanently and totally disabled Vietnam-era
veteran. 	Seeking injunctive and other relief, Wolff seeks to
bring claims against a number of prison officials, asserting
2In addition to the complaint and documents previously
identified as complaint addenda, the court construes the factual
assertions Wolff has made in Document Nos. 10 and 12-14 as
complaint addenda, and considers those assertions in conducting
preliminary review in this matter.
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that:
• 	He has been denied access to a prison job when other
inmates have been provided with prison jobs, in
violation of his Fourteenth Amendment equal protection
rights;
• 	He has been prevented from attending hobbycraft by
inmates and prison officials harassing him because he
is disabled and/or in a wheelchair;
• 	He has been denied adequate medical care (including
evaluation, surgeries, medication, and other
treatment) for his medical conditions, which include:
pain and other problems in his hips, knees, neck,
clavicle, and shoulder; cataracts; acid reflex; high
blood pressure; diabetes; and unspecified heart
problems.
• 	He was denied necessary emergency and/or outside
medical care on two occasions in January 2017;
• 	Prison dental providers have harmed his teeth and
denied him adequate dental reconstruction;
• 	He has been denied three meals a day which adequately
meet his nutritional, medical, and religious
requirements;
• 	He has been improperly admitted to the DOC’s Secure
Psychiatric Unit;
• 	His incoming legal mail has been seized and his
outgoing legal mail has not been sent out;
• 	He was injured when a CO pulled him out of a car by
his handcuffs;
• 	Lt. James Joseph Brown and a Unit Manager have aided
inmates in stealing Wolff’s property;
• 	His family members, in 1996, committed fraud against
him by stealing a Veterans Administration benefits
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check in the amount of $37,985 intended for Wolff; and
• 	His criminal conviction underlying his present
incarceration was improperly obtained.
Preliminary Review
I. 	Standard
The court conducts a preliminary review of prisoner
complaints filed by inmates seeking relief from government
agents. 	See LR 4.3(d)(1); see also 28 U.S.C. § 1915A. 	In
considering whether a pro se complaint states a claim, the court
construes the pleading liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam). 	The court then determines
whether, stripped of legal conclusions, and with all reasonable
inferences construed in plaintiff’s favor, the complaint
contains “sufficient factual matter, accepted as true, to ‘state
a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). 	Claims may be dismissed, sua sponte,
if the court lacks jurisdiction, a defendant is immune from the
relief sought, or the complaint fails to state a claim upon
which relief may be granted. 	See 28 U.S.C. § 1915A(b); LR
4.3(d)(1)(A).
II. 	Claims Challenging Conviction and/or Seeking Release
Wolff challenges the validity of the criminal conviction
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underlying his present incarceration on a number of grounds,
including error by the trial judge and ineffective assistance of
counsel. 	“‘[A] prisoner in state custody cannot use a [42
U.S.C.] § 1983 action to challenge the fact or duration of his
confinement. 	He must seek federal habeas corpus relief (or
appropriate state relief) instead.’” 	González-Fuentes v.
Molina, 607 F.3d 864, 873 (1st Cir. 2010) (quoting Wilkinson v.
Dotson, 544 U.S. 74, 78 (2005)). 	Accordingly, Wolff cannot
challenge his conviction in this civil action, and the district
judge, therefore, should dismiss Wolff’s claims based on the
wrongfulness of his conviction.
III. Claims Alleging Criminal Conduct
Wolff alleges that in 1996, a number of his family members
acted together to steal a $37,985 check issued to Wolff by the
United States Department of Veterans Affairs (“VA”). 	Wolff also
alleges that certain inmates, assisted by DOC/NHSP officers,
have stolen property and evidence from his cell. 	It appears
that Wolff is asking this court to have the individuals
responsible for these alleged thefts held criminally responsible
for that conduct.
“‘A private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.’” 	Diamond v.
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Charles, 476 U.S. 54, 64 (1986) (citation omitted). 	Because
Wolff lacks standing to compel the state to bring prosecutions
for alleged violations of criminal laws, the district judge
should dismiss all of the plaintiff’s claims arising from the
1996 theft of his VA check and the alleged theft of property
from his cell.
IV. 	Claims Which May be Amended
A. 	Equal Protection
The Fourteenth Amendment Equal Protection Clause requires
“that ‘similarly situated persons are to receive substantially
similar treatment from their government.’” 	Kuperman v. Wrenn,
645 F.3d 69, 77 (1st Cir. 2011) (citation omitted). 	To state an
equal protection claim alleging that he was denied access to a
prison job or to hobbycraft, when other inmates were allowed
such access, Wolff must state facts sufficient to show that, as
compared to others similarly situated, he was treated
differently on an improper basis or without a rational basis for
that different treatment. 	See id. at 78. 	Wolff’s allegations,
to date, are insufficient to so demonstrate.
Accordingly, in the Order issued this date (“Simultaneous
Order”), the court gives Wolff the opportunity to amend his
complaint to state an equal protection claim. 	To do so, Wolff
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must: 1) identify the individual(s) against whom he asserts this
claim; and 2) state, with specificity, what the individual(s)
did, or failed to do, which violated Wolff’s right to equal
protection. 	Wolff, therefore, must assert specific facts
showing how the identified defendants treated him differently
than other inmates; whether those other inmates were similarly
situated to Wolff in all relevant respects; and whether the
defendants treated Wolff differently for an improper and/or
discriminatory purpose, or without a rational reason for doing
so.
B. 	Americans with Disabilities Act
Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12132 (“ADA”) provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 	Id. 	That statute provides
a cause of action to inmates who allege that a state prison has
discriminated against them “on account of that individual’s
disability.” 	Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208,
213 (1998). 	Wolff’s allegations to date are insufficient to so
demonstrate.
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Accordingly, in the Simultaneous Order, the court gives
Wolff the opportunity to amend his complaint to state an ADA
claim. 	To do so, Wolff must: 1) identify the individual(s)
responsible for the conduct upon which this claim is based; and
2) state, with specificity, what each such individual(s) did, or
failed to do, which violated Wolff’s rights under the ADA.
Wolff, therefore, must assert specific facts: showing that he
has a qualifying disability; stating how prison officials denied
him access to hobbycraft or a prison job; and showing that such
denial was the result of discrimination based on Wolff’s
disability.
C. 	Inadequate Medical, Dental, and Mental Health Care
Wolff asserts that prison officials have denied him, and
continue to deny him, adequate medical, dental, and mental
health care. 	To state an Eighth Amendment claim challenging the
adequacy of prison medical, dental, and mental health care
services, Wolff must allege facts to show that prison officials,
acting with deliberate indifference, denied him adequate care
and treatment for his serious medical, dental, and/or mental
health needs. 	See Brown v. Plata, 563 U.S. 493, 545 (2011)
(recognizing that inmates have a right to adequate medical and
mental health care under the Eighth Amendment); Edmo v. Corizon,
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Inc., 935 F.3d 757, 785 (9th Cir. 2019) (“Serious medical needs
can relate to ‘physical, dental and mental health.’” (citation
omitted)).
That standard contains an objective component and a
subjective component. 	See Zingg v. Groblewski, 907 F.3d 630,
635 (1st Cir. 2018). 	The objective component may be established
by allegations regarding an unmet serious medical, dental, or
mental health need. 	See Miranda-Rivera v. Toledo-Dávila, 813
F.3d 64, 74 (1st Cir. 2016). 	The subjective component requires
the plaintiff to demonstrate that the defendant prison official
acted with deliberate indifference to the plaintiff’s health or
safety. 	See id. 	“Deliberate indifference requires (1) that
‘the official ... be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,’
and (2) that he draw that inference.” 	Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
Wolff’s allegations, to date, are insufficient to state a
claim of a violation of his Eighth Amendment rights based on
inadequate medical, dental, or mental health care. 	In the
Simultaneous Order, the court gives Wolff the opportunity to
amend his complaint to state such claims. 	To do so, Wolff must:
1) identify the individual(s) against whom he wishes to assert
each of those claims; 2) describe his serious medical, dental,
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and mental health conditions and needs; 3) state, with
specificity, what each such individual(s) did, or failed to do,
which violated Wolff’s right to adequate care; and 4) state,
with specificity, what facts demonstrate that such individual(s)
acted with deliberate indifference to Wolff’s serious medical,
dental, and mental health needs.
D. 	Inadequate Nutrition
Wolff asserts that prison officials failed to provide him
with three daily meals that met his nutritional, medical, and
religious needs. 	“The Eighth Amendment prohibition against
cruel and unusual punishment requires ‘nutritionally adequate
food that is prepared and served under conditions which do not
present an immediate danger to the health and well being of the
inmates who consume it.’” 	Abreu v. Lipka, 778 F. App’x 28, 33
(2d Cir. 2019) (citation omitted). 	Wolff’s allegations, to
date, are insufficient to state an Eighth Amendment claim upon
which relief can be granted, based on inadequate nutrition.
In the Simultaneous Order, the court gives Wolff the
opportunity to amend his complaint to state an Eighth Amendment
claim alleging inadequate nutrition. 	To do so, Wolff must: 1)
identify the individual(s) against whom he wishes to assert this
claim; and 2) state, with specificity, what each such
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individual(s) did, or failed to do, which violated Wolff’s right
to a nutritionally adequate diet. 	Wolff, therefore, must assert
specific facts showing how any particular individuals he
identifies, knowing that Wolff faced a significant risk of
serious harm to his health or safety, denied him inadequate
nutrition.
E. 	Mail Interference
“[A] prisoner’s right to the free flow of incoming and
outgoing mail is protected by the First Amendment.” 	Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003). 	Incoming legal mail
may be regulated only if the regulation is “reasonably related
to legitimate penological interests.” 	Thornburgh v. Abbott, 490
U.S. 401, 404 (1989). 	“An inmate’s outgoing mail is afforded
greater First Amendment protection than incoming mail, and
restrictions are justified only if they further ‘one or more of
the substantial governmental interests of security, order, and
rehabilitation.’” 	Acevedo v. Fischer, 12 Civ. 6866(RA)(AJP),
2015 WL 7769486, at *5, 2015 U.S. Dist. LEXIS 162027, at *12-*13
(S.D.N.Y. Dec. 2, 2015) (quoting Davis, 320 F.3d at 351).
Further, restrictions on outgoing mail “‘must be no greater than
is necessary or essential to the protection of the particular
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governmental interest involved.’” 	Acevedo, 2015 WL 7769486, at
*5, 2015 U.S. Dist. LEXIS 162027, at *13 (citation omitted).
Wolff’s allegations that certain individuals interfered
with his mail are insufficient to state a claim upon which
relief might be granted. 	In the Simultaneous Order, the court
gives Wolff the opportunity to amend his complaint to state
First Amendment claims based on interference with his mail. 	To
do so, Wolff must: 1) identify the individual(s) against whom he
asserts this claim; and 2) state, with specificity, what each
such individual(s) did, or failed to do, which violated Wolff’s
First Amendment rights relating to his mail.
F. 	Excessive Force
Wolff alleges that he was injured when CO Lightner removed
Wolff from a vehicle by pulling Wolff from the vehicle by his
handcuffs. 	Under the Eighth Amendment, an excessive force claim
“‘has two components -- one subjective, focusing on the
defendant’s motive for his conduct, and the other objective,
focusing on the conduct’s effect.’” 	Staples v. Gerry, 923 F.3d
7, 13 (1st Cir. 2019) (citations omitted). 	As to the objective
component, Wolff must show that “the alleged wrongdoing was
objectively harmful enough to establish a constitutional
violation.” 	Id. (internal quotation marks and citations
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omitted). 	“The subjective prong turns on ‘whether force was
applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing
harm.’” 	Id. (citations omitted).
Wolff has alleged that CO Lightner removed him from a
vehicle by pulling his handcuffs, and that as a result he was
injured. 	Those assertions are insufficient to state an Eighth
Amendment excessive force claim. 	In the Simultaneous Order, the
court gives Wolff the opportunity to amend his complaint to
state such a claim. 	To do so, Wolff must state, with
specificity, facts which demonstrate that CO Lightner acted with
a sufficiently malicious mental state to be liable for cruel and
unusual punishment under the Eighth Amendment.
Motions
I. 	Relief Requested
In his pending motions and complaint addenda (Doc. Nos. 10,
12, 13, 15), Wolff asks the court to:
1. 	Issue a search and seizure warrant to allow Wolff to
obtain his DOC offender file;
2. 	Issue an order preventing Lt. Brown from contacting
Wolff or putting Wolff into “a locked room in HSAS with
[no] way to contact anyone i[n] a medical emergency as a
chronic cardiac and medical patient”;
3. 	Issue an order preventing CO Rodriguez from contacting
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Wolff because CO Rodriguez removed 233 meals from Wolff’s
cell which Wolff was keeping as evidence, and because CO
Rodriguez has been “a thorn in [Wolff’s] side”;
4. 	Effect a lifetime revocation of Dr. Celia Ann
Englander’s medical license, and Nurses Amanda Currier’s,
Stephanie Donahue’s, Brad Bowen’s, Tina LNU’s, and Heather
LNU’s nursing licenses;
5. 	Direct the defendants to provide Wolff with an outside
health evaluation and outside emergency care, with United
States Marshals Service officers, rather than DOC officers,
guarding him;
6. 	Direct the defendants to place Wolff in protective
custody to protect his property and evidence;
7. 	Grant him relief from his criminal conviction;
8. 	Appoint counsel to represent him in this matter; and
9. 	Schedule a hearing on these motions.
II. 	Injunctive Relief
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	Irreparable
harm and the likelihood of success weigh most heavily in the
analysis. 	See Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22 (2008); Voice of the Arab World, Inc. v. MDTV Med. News
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Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011) (citing 11A Charles
Alan Wright, Arthur Miller & Mary Kay Kane, Federal Practice and
Procedure § 2948 (2d ed. 1995). 	The burden of proof is on the
movant. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18
(1st Cir. 2006). 	“‘[T]he sine qua non’” of the preliminary
injunction “‘inquiry is likelihood of success on the merits: if
the moving party cannot demonstrate that he is likely to succeed
in his quest, the remaining factors become matters of idle
curiosity.’” 	Sindicato Puertorriqueño de Trabajadores, SEIU
Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per
curiam) (citation and alterations omitted).
Wolff has not, to date, stated any claim upon which relief
might be granted. 	Wolff, therefore, cannot demonstrate at this
time that he is likely to succeed on the merits of the claims
raised in this action. 	Accordingly, the district judge should
deny Wolff’s requests for injunctive relief without prejudice to
Wolff’s ability to request such relief, as appropriate, if he
amends his complaint to state one or more claims upon which
relief might be granted and satisfies the remaining requirements
for obtaining such relief.
III. Court-Appointed Counsel
In Document No. 12, Wolff seeks the appointment of counsel
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to represent him in this case. 	“There is no absolute
constitutional right to a free lawyer in a civil case.”
DesRosiers v. Moran, 949 F.3d 15, 23 (1st Cir. 1991). 	This
court may deny a motion to appoint counsel for an indigent
plaintiff in a civil case unless there are “exceptional
circumstances present such that a denial of counsel [would be]
likely to result in fundamental unfairness impinging on his due
process rights.” 	Id. 	“To determine whether there are
exceptional circumstances sufficient to warrant the appointment
of counsel, a court must examine the total situation, focusing,
inter alia, on the merits of the case, the complexity of the
legal issues, and the litigant’s ability to represent himself.”
Id. at 24.
Wolff has failed to make the requisite showing of
exceptional circumstances to warrant the appointment of counsel
at this time. 	Accordingly, the district judge should deny
Wolff’s request for court-appointed counsel, asserted in
Document No. 12, without prejudice to Wolff’s ability to refile
his request if changed circumstances warrant such relief in the
future.
Conclusion
For the foregoing reasons, the district judge should: 1)
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dismiss Wolff’s claims arising out of or related to the 1996
theft of Wolff’s VA check or the alleged theft of evidence from
his cell, or challenging the validity of his criminal conviction
and/or incarceration; and 2) deny Wolff’s pending motions (Doc.
Nos. 10, 12, 13) for injunctive relief and the appointment of
counsel. 	Any objections to this Report and Recommendation must
be filed within fourteen days of receipt of this notice. 	See
Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file specific written
objections to the Report and Recommendation within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 2, 2020
cc: 	Charles Jay Wolff, pro se
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